New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK , #2003-030-006, Claim No. 104374


Defendant's motion to dismiss claim of alleged medical malpractice and/or ministerial neglect granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 24, 2003
White Plains

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See also (multicaptioned case)

James Anthony Carter, Jr., the Claimant herein, alleges in Claim number 104374 that defendant's agents failed to provide him with adequate and timely medical care when he was an inmate at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on December 17, 2002 and January 30, 2003.

At the trial, Claimant testified concerning the facts alleged in the Claim, and expanded upon them, addressing his alleged physical complaints over a period from 1995 to the present. The main thrust of the Claim, filed on June 4, 2001, is that Defendant failed to consider Claimant's medical history of facial trauma, continued complaints of dizziness, headache, ringing in the ears and pain, among other things, in order to arrive at a proper course of treatment for his complaints, and such failure to find a proper course of treatment has resulted in hearing loss. He asserts that he has now been diagnosed with temporal mandibular joint disorder (hereafter TMJ), and that the symptoms he presented should have alerted medical personnel to the possibility of this condition. Instead, Defendant chose to treat him for various sinus conditions and/or attributed his complaints to some kind of mental disorder. In the Claim, the specific date such failures are alleged to have precipitated his past and present pain and suffering is April 17, 2001. [
See, Claim No. 104374, ¶2].
Claimant stated that on April 17, 2001 he saw Dr. E. Fagin, an employee of the New York State Department of Correctional Services (hereafter DOCS), complaining of "headache, dizziness and fatigue."[1]
This visit is confirmed by the Claimant's ambulatory health record (hereafter AHR) for that day. [Claimant's Exhibit 1, State's Exhibit "C"]. These were not new complaints, as evidenced by the AHR for previous years, and the testimony of Claimant, Dr. Mikalus Halko, and Dr. John Perilli. In the DOCS consultation request, Dr. Fagin asked that a Cat Scan be performed, and noted the Claimant's complaints of dizziness and headaches for "6 yrs", and previous work-ups including an MRI of the brain, sinus Cat Scans, previous neurological consultations, and consultations with ear, nose and throat (hereafter ENT) specialists. [Claimant's Exhibit 1, State's Exhibit D]. The AHR for April 17, 2001, indicates that Dr. Fagin conducted a physical examination of Claimant. [Claimant's Exhibit 1 and 2].
Claimant testified that in or about July, 1975 when he was 11 years old, his head, nose and jaw were injured when he was playing with fireworks. He indicated that in February, 1995, after he had been incarcerated with DOCS since 1991, he first experienced headaches, dizziness and fatigue. The Court notes that in a neurological consultation report, dated November 2, 1995, the initial request by the then treating physician for a neurological consultation indicates that Claimant was complaining of feeling "unbalanced" for a four to five-month period, and had been given a Cat Scan of his head in April of that year. [Claimant's Exhibit 1]. A comprehensive medical history taken by the consulting neurologist notes the firecracker accident.
[Id]. The history includes the details offered by Claimant that he had placed the firecracker into a 55-gallon drum containing residual chemicals, and it had blown up in his face, fracturing his skull, jaw and nose, causing him to lose all his teeth, and resulting in many surgeries. [Id]. The history of head trauma is listed elsewhere in the 1995 AHR, as are complaints of dizziness and vertigo. For example, a report from the Erie County Medical Center Department of Electroencephalography dated June, 1995, and marked as received by Attica Correctional Facility Health Services on July 5, 1995, notes the complaints and the history. [Id]. The AHR for 1995 - where legible - shows complaints in June, July, August, September, October, November, and December concerning headaches, lack of balance, earaches, plugged ears and sinus congestion, in addition to many other complaints, including stomach pains, back pain, chest pain, constipation, and gum problems. [Claimant's Exhibit 1]. He appears to have been treated for complaints related to a hernia as well in May, 1995. [Id].
In the following years, Claimant was seen by medical personnel at least 3 times per month, and generally more frequently, as documented until June 8, 2001 when the AHR admitted in evidence ends.
[Id]. Treatment for a cyst in his eye, surgery on his septum, asthma, a knee injury and foot problems are also documented in the AHR. [Id]. Throughout the period commencing in 1995 to the present a considerable number of consultations with outside specialists, including neurologists, ENT specialists, audiologists, ophthalmologists, and radiologists are also documented.
Dr. Mikalus Halko, one of Claimant's treating physicians at Sing Sing commencing sometime in 2001, testified concerning his treatment of Claimant. He stated he saw Claimant for a "foot problem in 2001," and on or about May 8, 2002 had requested an outside consultation for clearance for a hearing aid. [Claimant's Exhibit 2]. Dr. Halko testified that he observed "multiple scars on [Claimant's] tympanic membrane, probably due to some previous illness, in both ears." He stated that from the little he knew about TMJ it only "rarely affects the ears." Dr. Halko was aware of Claimant's "history of facial trauma", and could not recall when Claimant actually received hearing aids. The record appears to indicate he was fitted for hearing aids in September, 2002. [State's Exhibit B].

Dr. John Perilli, the Facility Health Services Medical Director at Sing Sing since January, 1999, also testified. At Dr. Fagin's request, Dr. Perilli saw Claimant on April 18, 2001. Reading from the AHR notes for that day, Dr. Perilli stated he himself did not conduct a physical examination of the Claimant, but rather in his role as a consultant to Dr. Fagin, he reviewed the history and the recommendation that a further Cat Scan of the brain be performed. From Dr. Fagin's physical examination and notes, he could see that the Claimant had been complaining of headache and dizziness and fatigue. Given these presenting symptoms and history, Dr. Fagin gave what Dr. Perilli described as a "reasonably comprehensive physical." Dr. Fagin found the tympanic membranes were clear and Claimant's eye reflexes were found to be normal. He examined Claimant's neck, and the cranial nerves as well. The notes indicate the Claimant's frustration at not finding out what is wrong with him, as well as the physician's notation that the patient has had the same complaints for more than 7 years. There is a suggestion that depression be ruled out.

Dr. Perilli stated that "when the clinical conclusion from all examinations and tests is negative", nothing further can be done. Indeed, it appears that the witness confirmed Dr. Fagin's request for the additional brain Cat Scan, but it was denied. He then chose to not contest the denial since it confirmed his clinical impression.

Claimant filed a facility grievance concerning the denial of the outside consultation. [Claimant's Exhibit 19]. The Superintendent denied the grievance, on May 15, 2001, indicating that "[i]nvestigation found that grievant's medical condition does not indicate a need for a specialist appointment. Grievance denied with explanation that he should utilize sick-call to follow-up."
[Id]. The Central Officer Review Committee (hereafter CORC) decided Claimant's appeal of the Superintendent's decision on July 11, 2001. [Id]. Claimant had indicated in the "action requested" portion of the CORC form, that he wants Dr. Fagin to "...stop ignoring and procrastinating grievant's (serious) problem, and find out what's causing the pain and discomfort, before it [gets] too late and the cause of the problem, once it's discovered, becomes irreversible." [Id]. The CORC indicated that the grievance was "accepted only to the extent that CORC upholds the determination of the Superintendent for the reasons stated. CORC notes from additional investigation that the grievant has been referred for an ophthalmology consultation and is scheduled to be seen in the near future." [Id].
Dr. Perilli indicated he himself, and other physicians, examined Claimant after April, 2001, and that numerous audiology tests were performed as well. He noted that audiology tests, generally, must rely on the subjective indications of the patient as to whether a certain sound is heard.

On March 5, 2002, Dr. Perilli's own physical examination of Claimant revealed "mild scarring" in his ears. [Exhibit D]. He stated that one cannot look at a scar and judge its age - "it could be forming for decades; it could have been the result of an injury at the age of 10." It was "not medically possible that between April 17, 2001 and March 5, 2002 either an inner ear infection or anything else could have caused scarring to come about on March 5,'s a slow process...[it] could be a chronic condition that is building up and eventually a scar forms." Dr. Perilli stated that when a patient presents himself to a physician with certain subjective complaints, all that a physician can do is conduct appropriate tests to try to figure out what is wrong. It is a process of ruling out possibilities. With respect to hearing loss, Dr. Perilli noted there are generally two types: (1) conduction problems and (2) nerve problems. Based on the records, Claimant's hearing loss was not related to nerve problems. There appeared to be some kind of chronic conductive problem perhaps related to noise exposure.

From the record, Dr. Perillli could also see that on or about July 10, 2002, Dr. Moscatelli, an ENT specialist who examined Claimant, indicated among his impressions that Claimant might have TMJ. [Claimant's Exhibit 8]. The witness noted that an examining oral surgeon disagreed with that impression. Dr. Perilli described TMJ as a "mixed bag diagnosis that is poorly understood. It is not linked to any etiology. It may be stress, it may be a jaw disorder, but it is essentially a disorder of mastication." In a consult with Dr. Moscatelli in October, 2002 there is a notation that examination shows "click & tenderness ® TMJ." [Exhibit 3].

Dr. Perilli also reviewed for the Court the series of outside consultations Claimant underwent from 1995 to the present, and discussed the difficulty of achieving a conclusive diagnosis based upon the multitude of symptoms presented by Claimant. As noted earlier, the record reflects visits to specialists throughout this period. [
See, Exhibit D].
Almost parenthetically, Claimant appears to also allege that there was some delay in treating a cyst on his upper right eyelid. The medical records show that some treatment was given.

The Court has also reviewed all the exhibits presented by Claimant and the State. [
See, generally, Claimant's Exhibits 1 through 27; State's Exhibits A through D]. No other witnesses testified.
It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment.
Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The " ‘claimant must [demonstrate]... that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his...injuries' (
Parker v State of New York , 242 AD2d 785, 786...)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).
If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony.
Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
In this case, the question of the kind of care afforded is clearly one based on malpractice theories. Although Claimant argued that he was presenting a claim for "negligence and medical indifference", in order to establish this kind of claim Claimant needed to show how Defendant's agents violated their own procedures, or that the alleged negligence could be perceived without the assistance of expert testimony. On the one hand, are the Claimant's subjective complaints over a period of time, and the frustration he clearly feels at the Defendant's alleged "failure" to find out what was wrong. On the other hand - based upon the plethora of medical evidence submitted - is a track record of visits to medical personnel, and the credible testimony of two physicians as to the attempts to alleviate whatever immediate complaints the Claimant had over time, as well as to discover what - if any - was the root cause. It is clear that even now there continues to be dispute as to what Claimant's medical issues are.

In terms of establishing
prima facie that a claim of malpractice should lie, no competent medical evidence has been presented through an expert opinion to establish the standard of care applicable, and causation, between any alleged breach of the standard of care and any harm suffered. Accordingly, reading the cause of action as one asserting malpractice, it must be dismissed.
Additionally, from this record there is no indication that the actions of medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra; cf. Jacaruso v State of New York, Claim No. 97721, Lebous, J., filed September 9, 2002. To the extent the claim can be read to assert such theories, any cause of action for negligence or ministerial neglect is also dismissed.
The Defendant's motion to dismiss for failure to establish a
prima facie case, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 104374 is dismissed in its entirety. Any motions not otherwise disposed of are hereby denied.
Let Judgment be entered accordingly.

March 24, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or to audiotapes unless otherwise indicated.